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2009 DIGILAW 762 (CAL)

Debidas Banerjee v. Manik Lal Majhi

2009-09-23

KALYAN JYOTI SENGUPTA, TAPAS KUMAR GIRI

body2009
Judgment :- (1). This matter was heard yesterday but on account of illness of Mr. N. I Khan, learned Lawyer for the R.T.A concerned, the matter has been adjourned with the hope that today either he will be before us to assist us or some other learned Lawyers in his place, would do. Unfortunately, Mr. Khan has not recovered from his illness and R.T.A has not made any alternative arrangement rather prayed through learned Lawyer for adjournment for the day on the ground of illness of Mr. Khan. The ground is justified though, but when the appellant is in anxiety for getting hearing of the matter, we have no other alternative but to resume the hearing of this matter. In Re : C.A.N No. 6399 of 2009 (2). We have taken up the application for leave to prefer appeal against the judgment and order of learned Trial Judge as the appellant was not a party and being a third party has preferred this appeal. No one can dispute the settled law that third party has right to prefer appeal with the leave of the Appeal Court and the Court while entertaining such application shall examine degree and extent of his affectation. (3). We have gone through the impugned judgment and order of the learned Trial Judge and we find that learned Trial Judge has declared a particular resolution of the R.T.A Board which provides for replacement of vehicles is contrary to the provision of law and the same was set aside. (4). The appellants before us on the strength of the earlier resolution adopted by R.T.A Board have altered their position and placed their vehicle and invested a large amount of money. Overnight the R.T.A Board without any notice, on hearing the appellant, going by record withdrew the earlier resolution purporting to implement the judgment and order of the learned Trial Judge impugned before us. We think that there has been affectation of the appellants rights in this matter by reason of the aforesaid judgment. We grant leave prefer appeal but again it is subject to the decision on the application for condonation of delay in preferring appeal. In Re : C.A.N. No. 6400 of 2009 (5). We think that there has been affectation of the appellants rights in this matter by reason of the aforesaid judgment. We grant leave prefer appeal but again it is subject to the decision on the application for condonation of delay in preferring appeal. In Re : C.A.N. No. 6400 of 2009 (5). In the application for condonation of delay we notice that petitioner was a third party and they were not aware of this order and the moment they were aware of the impugned order, they have approached this Court with a prayer for leave to prefer appeal. The delay is about only 149 days. We are satisfied with the grounds made out in the application for condonation of delay. Accordingly, the delay is condoned. In Re: CAN. No. 6401 of 2009 (6). We have gone through the records. It appears to us that pursuant to the judgment and order of the learned Trial Judge a new resolution has been adopted. So, prayer for stay of operation of the aforesaid judgment, in our view, is meaningless and no useful purpose will be served. At present there has been no challenge against the new resolution. (7). Mr. Moitra has drawn our attention to the new resolution and he has made a lot of submission which has got tremendous force in the eye of law and Court could have examined this. Unfortunately, there is no lis before us impugning the said resolution and not even a prayer has been made in the application for interim relief touching the said resolution. If we are tempted to consider the legal point raised by Mr. Moitra and pass any order being persuaded by his eloquent submission, perhaps it would be an act of without jurisdiction. Lack of jurisdiction has got many a facets and one of such facets is that if no lis is pending and the subject-matter is not placed before the Court and Court passes any order unconnected with the issue involved, that would be a void order and nullity. The Court consciously cannot afford to do so. If it does so, the confidence and faith of the public at large will be seriously eroded because it goes to the very question of credibility as well as the predictability of the Court. The Court consciously cannot afford to do so. If it does so, the confidence and faith of the public at large will be seriously eroded because it goes to the very question of credibility as well as the predictability of the Court. A few of the qualities of the Court should be, in our view, predictability and credibility, and any action of this sort, in our view, does not subserve the effective and impartial judicial function. (8). Under such circumstances, we do not pass any order as prayed for, as it will be meaningless exercise. However, we grant liberty to the appellant to take steps in accordance with law as may be advised in apropos the new resolution. However, we clarify that any decision of the executive or quasi-judicial authority is always a prospective one and is not a retrospective one. Obviously, the parties will take action keeping in view the resolution being a prospective one. We are of the view that the issue involved in this matter has got an impact in the interest of a large number of people having same interest. We think, the writ petitioner/respondent should have assisted the learned Trial Judge asking for leave for advertisement in the newspaper so that similarly situated persons, namely, operators would have come before this Court either to oppose or to support the action. Had it been so, perhaps the third party would not approach for preferring appeal and this action could have been nipped in the bud. Therefore, we do not want to repeat the same mistake as the appeal is the continuation of original lis. We, therefore, ask Mr. Moitras client as well as Mr. Boses client to advertise in the newspaper having wide circulation in the district of Burdwan. The advertisement shall be issued in Bengali daily newspaper having widest publication in the district of Burdwan. The expenses of this advertisement shall be borne by Mr. Moitras client and Mr. Boses client in equal share. (9). Therefore, let the matter come up for hearing before the appropriate Bench one week after publication as above. After the advertisement is inserted, an affidavit shall be filed to that effect by both the parties that this order of advertisement has been implemented. This advertisement shall be inserted within fortnight from the date of receipt of the copy of this order. (10). All the applications are, thus, disposed of. After the advertisement is inserted, an affidavit shall be filed to that effect by both the parties that this order of advertisement has been implemented. This advertisement shall be inserted within fortnight from the date of receipt of the copy of this order. (10). All the applications are, thus, disposed of. Appeals disposed of.